Thursday, June 11, 2015

Contracting Officers' Decisions Must be Timely

How long does a contracting officer have before making a decision on a claim? Sixty days or a good reason why it should take longer. But the extension must be a definite date and "reasonable". A recent Board case illustrates this principle.

Brad West and Associates (Brad West) filed a request for equitable adjustment (REA) with the Department of Transportation (DOT) in June 2013. DOT granted some of Brad West's  claim but denied other portions. In February 2014, Brad West submitted a certified claim to DOT for $1.375 million. According to the Contract Disputes Act (CDA), a contracting officer has only 60 days to issue a decision or to notify the contractor of the time within which a decision will be issued. This time period is not limitless. The CDA imposes the requirement that the decision be issued within a reasonable time, taking into account such factors as the size and complexity of the claim and the adequacy of the information provided by the contract in support of the claim. In this case, the contracting officer advised Brad West in March 2014 (roughly two weeks after the claim was submitted) that it "anticipated" issuing a contracting officer's decision by December 2014, about 10 months after Brad West submitted its claim.

In May 2014, Brad West filed an appeal from the failure of a contracting officer to issue a decision on its claim ("deemed denial"). In June 2014, the Board (Civilian Board of Contract Appeals) directed DOT to issue a decision within 30 days or advise the Board as to why such a decision could not be issued.

DOT tried to rationalize its actions. DOT maintained that (i) the claim was complex, representing over half of the original contract price, (ii) the contracting officer was very busy, and (iii) the contracting officer needed more time to review the claim because of no prior involvement in the claim.

The Board thought that DOT's excuses were nonsense. It was not a new claim. Over six months prior to the claim submission, DOT had reviewed Brad West's REA. Thus it was familiar with the claim. Secondly, the idea that DOT was too busy was unpersuasive. And thirdly, the statute requires a decision be provided in a reasonable time and if DOT was too busing, it should have assigned other personnel to the review. Finally, the Board found that DOT's "anticipated" date was indefinite and not in accord with the intent of the statute to provide a date certain when the decision will be issued.

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